Construction & Engineering

ADJUDICATION

Adjudication expedites resolution of payments disputes – but can a party stop the process by applying for judicial review?

The question of whether judicial review can halt an adjudication process has arisen previously. While the Court has not yet confirmed that there can never be any circumstances in which a judicial review application could be successful and result in a stay of an adjudication process, there is more clarity regarding the approach of the Court following the judgment in K&J Townmore Construction Ltd v Damien Keogh and Deslend (Mechanical) Ltd t/a Cobec Engineering Group [2023] IEHC 509.

In this case, the High Court dismissed the judicial review application of the adjudicator’s decision to proceed with an adjudication, in which a contractor had sought to challenge the jurisdiction of the adjudicator to decide the dispute referred by a sub-contractor. The Court confirmed that the appropriate time for dealing with challenges to jurisdiction would be after the adjudication finished, in the context of proceedings taken to enforce the adjudicator’s decision.

Our briefing on the judgment is available here.

Enforcement Decision

The High Court in Ireland enforced adjudication orders in an application for enforcement in DNCF Ltd (applicant) v Genus Homes Ltd (respondent) [2023] IEHC 490. The employer sought to resist enforcement, mainly based on an argument that the adjudicator had breached fair procedures by not requesting the employer to provide further detail to support its defence during the adjudication. In an interesting analysis of the role of an adjudicator, the Court indicated that this essentially is not the adjudicator’s job. This is important reading for anyone who may potentially become involved in an adjudication process.

Our briefing on the judgment is available here.

SUSTAINABILITY

CBAM Reporting

Reporting obligations begin on 1 October 2023 for importers of certain products into the EU under the Carbon Border Adjustment Mechanism Regulation (EU) 2023/956. In scope goods include cement, iron and steel, aluminium, electricity and certain chemicals, so the Regulation will have a significant impact on the construction sector.

During the transitional reporting period beginning from 1 October 2023, where an importer has imported goods (including from the UK) in any given quarter of a calendar year, they must submit a CBAM report which includes the following information:

1. total quantity of each type of goods specified for each installation producing the goods in the country of origin;
2. actual total embedded emissions;
3. total indirect emissions;
4. the carbon price due in a country of origin for the embedded emissions in the imported goods (taking into account any rebate or form of compensation).

An Implementing Regulation lays down rules on reporting obligations for the transitional phase and the Commission has also published guidance available from this page. Further information on the CBAM is available here. In Ireland, Revenue indicates here that Revenue, as the National Customs Authority, and the Environmental Protection Agency, as the National Competent Authority, will work together to engage with all stakeholders to implement CBAM.

District Heating

The District Heating Steering Group Report identifies the absence of policy, legislative and regulatory frameworks as a key barrier to the mobilisation of private and public investment in district heating. The report states: “Primary legislation will be required to ensure that developers of district heating projects have the necessary legal powers (vires) to operate in the sector, and to facilitate regulatory provisions to enable customer protections, as well as putting in place licensing and consenting provisions for district heating operators. Legislation should also mandate that public sector buildings connect to available district heating networks (where technically and economically feasible), and that industrial facilities supply waste heat to district heating where total rated energy input is at least 1MW.”

Provisions in the Renewable Energy Directive II providing a framework to encourage district heating will be significantly expanded in the Recast Renewable Electricity Directive III, which is in the process of final approval by the EU institutions.

Retrofit of Public Buildings

Ireland’s first payment request under the EU Recovery and Resilience Facility has been submitted. It is intended to support, among other things, works under the Public Sector Buildings’ Energy Retrofit Scheme.

EU Building Observatory

The Commission launched an improved version of the EU Building Stock Observatory, a web tool to monitor energy performance and decarbonisation-related buildings data for all EU countries.